POCSO (Protection of Children from Sexual Offences) Act, 2012, has been an active policy since its inception. POCSO is an elaborated form of Rights provided to children for their protection from sexual abuse. POCSO Act after amendment in 2019 constitutes 9 chapters dealing in different aspects of sexual abuse.
WHAT IS CHILD SEXUAL ABUSE?
Child sexual abuse means abusing a child in an unwanted/unaccepted manner by touching vagina, penis, breast or any other part with sexual intent. There has been amendment in 2019, after which 4 more definitions for child abuse (sexual harassment, aggravated sexual assault, penetrative sexual assault and aggravated penetrative sexual assault) have been added. Section 3 of POCSO defines sexual abuse with respect to penetration, wherein the conditions defined are same as defined for ‘Rape’, in Section 375 of IPC. The only difference in definition of Rape and Child Sexual Abuse is that mere sexual intercourse of adults cannot cause Rape, as the law provides adult a choice to be involved in sexual relationship. If the sexual intercourse of adults is with their due consent, it cannot qualify for Rape, whereas law does not provide any such exception of consent in child sexual abuse, because law does not consider children (anyone below age 18) mature enough to decide what is right and what is wrong. For every wrong committed, there exists a law specifying punishment.
Section 8 of POCSO defines punishment for sexual abuse as imprisonment of 3 years which may be extended to 5 years. Section 4 of POCSO defines punishment of child sexual abuse as imprisonment for 10 years which may extend to life imprisonment and fine, while if the sexual assault happens with a child below 16 years, then the punishment is imprisonment for 20 years which may extend to life imprisonment. and fine. Section 6 of POCSO defines punishment for aggravated sexual assault as rigorous imprisonment of twenty years which may be extended to life imprisonment and fine. The latest amendment adds death penalty in case of aggravated penetrative sexual assault as maximum punishment. Death Penalty is a rigid step taken by the government, and this step would create a fear in mind of people who use children for sexual gratification through child pornography.
Presence of child in a pornographic content has been marked as an offence in Section 13 of POCSO defining Child Pornography. Punishment for the same is imprisonment for a term of 5 years at first. Later, if convicted for the second time, imprisonment would be for a term of 7 years. Child pornography has been a major reason of children being deviated from primary things to other severe hazardous things. In today’s world, child pornography is accessed by minors at a large number. It is said that about 70% of the total internet usage is pornographic contents and 89% of total population of India watched porn via mobile, These pornographical content influences minors immensely, leading to sexual assault and harassment cases.
Reports say that after ban on porn sites, the viewership has only increased, i.e. ban has increased the urge of visiting these sites more. People by changing their IP address are viewing porn. Lockdown amid the pandemic has boosted the viewership of porn by 95%. Thus mere blocking from some sources could not be the ultimate solution. Rather, educating them in school and a proper elderly eye on them at home inculcating values and manners can only help us cure this problem some way.
The exposure children are getting to the internet world without proper education and thorough understanding is deviating them from their social and cultural values and polluting their mindset. The only way to curb this is not by imposing fines or restrictions. but by bringing inner transformation in children by means of education given them in schools and home. The urge which is created within through pornographic content has somehow given rise to sexual abuse in the country, especially in the remote areas of society. The cases are now being duly reported, but what we need is justice on time, which is only possible if there are certain courts specially designed to do such task.
Chapter VII of POCSO constituting 4 sections from Section 28 to Section 32 defines the working and usage of Special Courts. Special Courts have been setup for speedy trials and speedy disposals of case. Government proposes to setup 1023 special courts for the speedy trial of 1.66 lacks pending cases on child abuse. Reports say that in 2015, more than 34,000 cases were registered under this act, in 2016, more than 36000 cases were reported and In 2017, more than 32,000 cases were registered. There are more than 2 lakhs cases pending in court today which result in delay of judgment, and ‘Justice Delayed is Justice Denied.’ This approach needs a reform, and by means of establishment of more courts, the trial can be held speedily.
Right to Survival is one of the rights which stands questionable, as many rape victims often think not to survive further, children who are labored at hazardous places and go through sexual abuse often don’t want to live.
This illustrates that until and unless all the schools (Government or Private) join hands together to determine to educate children about their rights, their response in certain situation, we cannot resolve the burning issue of sexual abuse.
Right to Protection is one of the other rights which females are demanding constantly and yet we are not able to address it properly. Despite other laws amended so far, Death penalty seems to be a rigid amendment. There have been various cases, wherein defendants have been termed imprisonment for rape, because death penalty is given only when the crime is proved to be more heinous. In my opinion, death penalty should be given to every person convicted for rape, as all rape victims equally pass through the same phase of mental trauma and social exclusion.
Delay in judgment stands to be one of the major concerns till date, which can be duly seen in many cases, especially in Nirbhaya Rape Case which was highlighted in media in recent times; there was a huge delay in decision making. And, even after passing death warrant, there was a delay of more than a month, which proved judiciary futile. This stands to be one of the reasons for sexual offences being attempted on a large scale since many years. But, after the amendment in POCSO Act, the act seems to be more stringent and protracted.
The analysis of the reported cases and certain judicial pronouncements show that despite strict laws, we need an evolution in the education system, lack of sex education provided in schools has lead to path of astray for children. Education is the basic foundation of future. Children (the future) if taught the right thing in the right way can help us establish symbol of peace and prosperity in future.
Author: Arunabh Srivastava,
Symbiosis Law School, NOIDA, 2nd Year